Citation Nr: 1003154 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 99-06 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent prior to September 26, 2003, for cervical syringomyelia. 2. Entitlement to an evaluation in excess of 20 percent on or after September 26, 2003, for cervical syringomyelia. 3. Entitlement to special monthly compensation based on housebound status. ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions rendered by the Des Moines, Iowa Regional Office (RO) of the Department of Veterans Affairs (VA). In a January 1999 rating decision, a rating in excess of 10 percent for cervical syringomyelia was denied. The Veteran perfected an appeal of that denial. Thereafter, in a March 2005 rating decision, the RO increased the rating for service-connected cervical syringomyelia to 20 percent, effective from September 26, 2003. The Veteran has also continued his appeal as to this issue. The Board has also separately identified the issue of entitlement to a rating in excess of 10 percent for this disability prior to September 26, 2003, as the Veteran's claim for increased rating was filed prior to the effective date assigned for the 20 percent rating. In a November 2001 rating decision, special monthly compensation based on housebound status was denied. The Veteran perfected an appeal of that denial. In a decision dated in November 2005, the Board denied the appeal. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2006 order, the Court granted an unopposed motion filed by the appellee, and vacated and remanded the Board decision. The primary basis for the remand was the Veteran's claims files had been lost in transit from the RO. However, while the RO was in the process of rebuilding the file, the original claims files were located. In December 2006, and February 2009, the Board remanded these issues for further development. The VA Appeals Management Center issued a Supplemental Statement of the Case (SSOC) in October 2008 continuing the previous denials. The case has been returned to the Board. Finally, in a statement dated in May 2009, the Veteran appears to claim entitlement to service connection for a disability related to a potassium deficiency, to include as an undiagnosed illness based on service in the Persian Gulf. This claim has not yet been developed for appellate review. As such, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a VA medical examination which was scheduled to evaluate the current severity of his service-connected cervical spine disability. 2. For the period prior to September 26, 2003, the Veteran's cervical spine disability was manifested by neck and shoulder pain, but was not shown to result in limited motion, or objective evidence of syringomyelia. 3. For the period since September 26, 2003, the Veteran's cervical spine disability was manifested by neck and shoulder pain, but was not shown to result in motion limited to 15 degrees or less, ankylosis of the cervical spine, or objective evidence of syringomyelia. 4. The veteran is not substantially confined to his dwelling and the immediate premises by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period prior to September 26, 2003, the criteria for a disability rating in excess of 10 percent for cervical syringomyelia have not been met. 38 U.S.C.A. § 1155 (West 2002); C.F.R. §§ 3.321, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Codes 5287, 5290, 8024 (2003). 2. For the period since September 26, 2003, the criteria for a disability rating in excess of 20 percent for cervical syringomyelia have not been met. 38 U.S.C.A. § 1155 (West 2002); C.F.R. §§ 3.321, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Codes 5237, 8024 (2009). 3. The criteria for special monthly compensation based on housebound status have not been met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.350 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. As explained below, the Board finds that all relevant evidence has been obtained with regard to the Veteran's claims and that the requirements of the VCAA have been satisfied. In April 2004 and March 2009 letters pursuant to the VCAA, the RO advised Appellant of the types of evidence that he needed to send to VA in order to substantiate the claims, as well as the types of evidence VA would assist in obtaining. Specifically, in the April 2004 letter he was advised what the evidence must show to support the claim for special monthly compensation based on housebound status, and the March 2009 letter advised him of the evidence necessary to substantiate the claims for increased ratings for the service-connected cervical syringomyelia. In addition, he was informed of the responsibility to identify, or to submit evidence directly to VA. He was advised that the RO would obtain any VA records or other identified medical treatment records. Finally, the letters advised the Veteran of the evidence it had received in connection with the claims. In addition, the VCAA notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the March 2009 letter, VA advised the Veteran of these criteria. The Board notes that typically, following the issuance of a VCAA notice letter, the RO will readjudicate the claim. This is to ensure that the Veteran has sufficient opportunity to present information or evidence in support of his claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, following the March 2009 letter the RO did not readjudicate the claims. The Board finds, however, that remand is not required. In short, the Veteran was not prejudiced by the RO's actions as he did not submit nor did VA obtain any additional relevant evidence or argument in support of the claims. The hospitalization records from April 2009 did not contain any objective findings regarding the cervical spine disability, but merely noted some complaints. Thus, any failure to readjudicate the claim constituted harmless error. Also, all necessary development has been accomplished. The RO substantially complied with the Board's Remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO provided appropriate VCAA notice as directed in the February 2009 Remand. The RO obtained identified relevant VA outpatient treatment records. There was also substantial compliance with the Board's earlier December 2006 Remand instructions. The Veteran was asked to attend a VA examination scheduled in July 2008. Although he appeared at the VA examination, he refused to be examined. While the Board regrets that the Veteran refused the opportunity for an examination, VA's "duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the veteran wished to fully develop his claim, he had a corresponding duty to assist by submitting to the necessary diagnostic studies, and cooperating with testing. Turk v. Peake, 21 Vet. App. 565 (2008). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Ratings for Cervical Syringomyelia In general, VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law further states that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Here, in the March 2006 Motion For Remand, which was incorporated into the Court's June 2006 Order, Appellee noted that the April 2000 and October 2004 VA examinations may not have adequately addressed functional loss and related factors found in 38 C.F.R. §§ 4.40 and 4.45. As noted, the case was vacated and remanded to the Board. In its December 2006 Remand directive, the Board agreed that the examination reports were not adequate for rating purposes and found that a new examination was necessary. In a July 2008 letter, the RO advised the Veteran that the local VA medical center would contact him with scheduling information for a new examination. He was advised of the importance of the examination, and further advised that without the examination "we may have to deny your claim." The Veteran appeared at the VA medical center on the date of the examination but refused to be examined. He gave the examiner a note stating "when you have a face to face meeting with my primary health care provider Dr. Janet Cuhel and reimburse me all money paid to her, maybe we can talk." According to the VA examiner's report, the VA examiner called Dr. Cuhel and was informed that she had treated the Veteran since 2001 for chiropractic care, "was seen in her office yesterday reports no headaches, and health issues have resolved." When a claimant fails to report, without good cause, for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565 (2008). See also 38 C.F.R. § 3.326(a). Here, the Court made implicit findings and the December 2006 Board made explicit findings that the previous examinations were inadequate. The Board in December 2006 also found that a new examination was necessary to establish entitlement to the benefits sought. In addition, the Board can find no good cause for the Veteran's failure to participate in the scheduled examination. The Board finds that the Veteran's appearance at the VA medical center on the day scheduled does not satisfy the regulatory mandate that he "report" to the examination. An additional level of cooperation, particularly here, where a physical examination of the spine is needed, was required. The Veteran has not advanced any good cause for his failure to participate other than his desire for the examiner to speak with his chiropractor. Rather, throughout the course of his dealings with VA, the Veteran has expressed hostility and agitation with VA employees. It is noteworthy that this is not the first VA examination in which the Veteran has failed to be examined. (See, for example, Report of May 2003 VA Examination during which the Veteran failed to allow a physical examination of his neck.) While the Board is cognizant that the Veteran is totally disabled due to his service-connected schizophrenia, the Board finds that the disability does not excuse him from reporting to the VA examination or prevent him from providing a rationale as to why he could not participate in the examination. The VA examiner did speak with the chiropractor and no information was received during that conversation that revealed why the Veteran could not participate in the examination. As such, the Board finds that good cause has not been shown, and based on the Veteran's failure to attend the examination; the Board may deny the claim on this basis alone. The Board is of course aware of due process concerns that may arise in connection with cases, such as this, in which a Veteran's claim is being denied based on his failure to adhere to VA regulations rather than the Board considering evidentiary merits of the issue on appeal. Cf. Swan v. Brown, 9 Vet. App. 450 (1996) and cases cited therein. In this case, any due process concerns have been satisfied. As noted, the July 2008 letter to the Veteran scheduling his VA examination indicates the importance of the examination and possible consequences for his failure to report. Further, the Veteran was, or should have been, aware of the importance and the potential impact a new VA examination could have on his increased rating claim because he did not oppose the motion for remand before the Court that sought to vacate and remand the Board's decision for purposes of obtaining a VA examination. To the extent that the Veteran was not aware of the consequences of his failure to report to the VA examination, the Board has nevertheless reviewed the evidence of record to determine if the service-connected cervical spine disability is of such severity to warrant the award of a higher disability evaluation. In this respect, disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. The Veteran's service-connected cervical syringomyelia is rated as 10 percent disabling prior to September 26, 2003, and 20 percent disability since September 26, 2003, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5237. In order to justify a higher rating under Diagnostic Code 5290, the rating criteria that were in effect prior to September 26, 2003, required evidence of moderate or severe limitation of cervical spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). In order to justify a higher rating under Diagnostic Code 5237, as in effect since September 26, 2003, there must be evidence of forward flexion of the cervical spine limited to 15 degrees or less or favorable ankylosis of the entire cervical spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2009). Similarly, a 30 percent rating is warranted under Diagnostic Code 8024 for cervical syringomyelia. A note to that Diagnostic Code, however, indicates that a rating for syringomyelia must be supported by evidence of ascertainable residuals. 38 C.F.R. § 4.124a, Note Here, the private and VA medical records reflect the Veteran's reports of chronic neck and shoulder pain, but do not show motion limited to 15 degrees, nor do they show any evidence of ankylosis or other objective residuals of syringomyelia. Rather, when the Veteran allowed examiners to conduct range of motion studies, motion was essentially without limitation. While pain on motion and evidence of functional loss may be considered in awarding a higher evaluation (see 38 C.F.R. § 4.40, 4.45), here, evidence of neck and shoulder pain has been taken into consideration by the RO when assigning the disability evaluation. Moreover, even after consideration of the Veteran's subjective reports of pain, the disability is not shown to more nearly approximate the criteria for a higher disability evaluation. The current subjective reports of pain, as noted above, are contradicted by the Veteran's chiropractor who indicated that the symptoms had resolved. Finally, as noted, the VA examination scheduled in 2008 was undertaken in order to obtain range of motions studies, commentary on the presence and extent of any functional loss due to painful motion, weakened movement, excess fatigability, and/or incoordination. It is regrettable that the Veteran failed to participate in the VA examination. In addition, while the rating schedule represent as far as is practicable, the average impairment of earning capacity, to afford justice in exceptional situations, an "extraschedular" rating can be provided. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1)(related factors include "marked interference with employment" and "frequent periods of hospitalization"). Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted above, even accepting the Veteran's reports that his service-connected cervical spine disability causes pain, such impairment is contemplated by the rating criteria. The rating criteria reasonably describe the Veteran's disability. In addition, while the Veteran is unemployed, unemployment is due to his psychiatric disability and it is not shown that the cervical spine disability causes marked interference with employment or results in hospitalizations. Hence, referral for consideration of an extraschedular rating is, therefore, not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for increased disability evaluations for service-connected cervical syringomyelia. See 38 U.S.C.A. §§ 5017(b); 38 C.F.R. § 4.3;Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Housebound Benefits Special monthly compensation at the Housebound rate is payable to a veteran who has a single service-connected disability rated as 100 percent disabling and either (a) has an additional service-connected disability, or disabilities, independently rated as 60 percent disabling, which (i) is/are separate and distinct from the service-connected disability rated as 100 percent disabling and (ii) involve(s) different anatomical or bodily symptoms; or (b) is permanently housebound by reason of a service-connected disability or disabilities. The latter requirement is met when the veteran is substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities, or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities will continue throughout the veteran's lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The most recent VA rating decision reflects that the service- connected disabilities and corresponding disability ratings are as follows: paranoid schizophrenia, rated as 100 percent disabling; right arm hypoesthesia associated with cervical syringomyelia, rated as 20 percent disabling; cervical syringomyelia, rated as 20 percent disabling, and tension headaches secondary to cervical spine condition, rated as 10 percent disabling. The combined evaluation is 100 percent. While the Veteran has one disability rated as 100 percent disabling, he does not have additional disability or multiple additional disabilities that can be combined into a 60 percent rating. See Bradley v. Peake, 22 Vet. App. 280 (2008)(noting that multiple disabilities can be combined into a single rating to satisfy the second requirement of 38 U.S.C.A. § 1114(s)). His additional disabilities, however, rated as 20 percent, 20 percent, and 10 percent do not combine to equal 60 percent. See 38 C.F.R. § 4.25 Combined Ratings Table. Thus, he does meet the statutory or regulatory threshold for special monthly compensation pursuant to 38 U.S.C.A. § 114(s) or 38 C.F.R. § 3.350(i). In addition, although the Veteran has asserted the he is housebound as a result of his service-connected disabilities, the probative and persuasive evidence does not support the claim. In this respect, although the Veteran is in receipt of a total disability evaluation for his service-connected schizophrenia, he is not institutionalized or confined to a psychiatric ward. Similarly, the competent medical evidence, to include treatment records, VA examinations, and other evidence of record, to include records from the Social Security Administration, does not show that he is substantially confined to his dwelling as a result of his service-connected disabilities. The Board again notes that the Veteran refused to be examined by the July 2008 VA examiner. Therefore, the July 2008 VA examiner was unable to determine whether the Veteran's disabilities caused such impairment as to render him housebound. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for special monthly compensation based on housebound status. See 38 U.S.C.A. §§ 5017(b); 38 C.F.R. § 4.3;Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER For the period prior to September 26, 2003, a disability rating in excess of 10 percent for cervical syringomyelia is denied. For the period since September 26, 2003, a disability rating in excess of 20 percent for cervical syringomyelia is denied. Entitlement to special monthly compensation based on housebound status is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs